Is it Constitutional?

Every branch has a duty to decide

Recent debate on the so-called Enforce the Law Act raises some fundamental questions about the proper roles of the three branches of the federal government.

The Enforce the Law Act would authorize either house of Congress to sue the executive branch if the president, or any federal agency head or employee “has established or implemented a formal or informal policy, practice, or procedure to refrain from enforcing, applying, following, or administering any provision of a Federal statute, rule, regulation, program, policy, or other law.”

Republicans in the House pushed the bill to combat what they call an “imperial presidency.” The Obama administration has refused to make enforcement of some laws a priority and delayed implementation of others. As the Washington Free Beacon put it, “Republicans say the legislation is necessary in light of the numerous administrative actions taken by President Barack Obama to change and selectively enforce laws, including immigration, marriage, welfare rules, and his signature legislative achievement, Obamacare.”

While the Enforce the Law Act certainly has political value for Republicans, it raises two very important fundamental questions that they would be wise to consider.

Is it even possible for the executive branch to vigorously enforce every federal law, act, regulation and statute given its limited resources?

Should the president enforce every act passed by Congress?

The Code of Federal Regulations fill some 150,000 pages in 50 volumes. While some of Pres. Obama’s enforcement decisions certainly hinge on political considerations, the fact remains that the executive branch has to prioritize enforcement simply based on the sheer number of laws on the books. The feds cannot vigorously enforce every law with its limited budget and personnel. Consider the war on marijuana. All 21 states operating medical marijuana programs run afoul of federal law. But according to numbers compiled by Americans for Safe Access, it would take twice the annual DEA budget to shut down the medical marijuana dispensaries in Denver. That’s just one city…in one state. Regardless of how much the president wants to crack down on medical marijuana, he can no longer make a real dent. And despite what Sen. Cruz and other Republicans tell you, the Obama administration has aggressively enforced marijuana laws, already spending more than Bush did in his entire two terms.

Republicans should ask themselves a question: do they really want EVERY federal law enforced? The Affordable Care Act was predicated on state cooperation with implementation. The large number of states refusing to create exchanges have created big problems for the feds. With the number of laws and regulations constantly growing, we will begin to see, in time, de facto nullification. States will refuse to comply and the federal government lacks the resources to do it all themselves. It creates for Republicans the perfect opportunity to render unconstitutional acts functionally void.

This leads us to the more fundamental question: should the president enforce every act of Congress without question?

According to leading figures from the founding era, absolutely not.

The principle of coordinate construction holds that each branch of the federal government possesses an independent responsibility to uphold the Constitution, and has not only the authority, but a duty to take action based on its view of the constitutionality of an act. Andrew Jackson provided perhaps the clearest explanation of coordinate construction.

The Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for final decision. The opinion of judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point, the president is independent of both.

Thomas Jefferson put this principle into action during his presidency, saying he had a duty to arrest the execution of the Sedition Act. He explained his actions in an 1804 letter to Abigail Adams.

I discharged every person under punishment or prosecution under the Sedition law, because I considered & now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest it’s execution in every stage, as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship their image. [Emphasis added]

…each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.

Some may argue this was simply a construction created by two executive officials wanting to justify their own actions, but James Madison, the Father of the Constitution, made a similar argument on the House floor as a member of the First Congress.

It is incontrovertibly of as much importance to this branch of government as to any other, that the Constitution should be preserved entire. It is our duty, so far as it depends on us, to take care that the powers of the Constitution be preserved entire to every department of government. [Emphasis added]

As the Legislative, Executive & Judicial Departments of the U. S. are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and consequently, that in the event of irreconcileable interpretations, the prevalence of the one or the other Departmt. must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other.

Some will argue that despite what the founding generation thought, it is well-established that the federal judiciary serves as the ultimate interpreter of the Constitution. But as legal scholar Louis Fisher points out, “Being ‘ultimate interpreter,’ however, is not the same as being exclusive interpreter. The courts expect other branches of government to interpret the Constitution in their initial deliberations. ‘In the performance of assigned con­stitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.'”

Chief Justice John Marshall alluded to this in his famous Marbury v. Madison opinion.

The particular phraseology of the Constitution…confirms and strengthens the principle…that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. [Emphasis added]

Former Reagan administration U.S. Attorney General Edwin Meese makes a strong case for presidential prerogative in choosing not to enforce acts he deems as unconstitutional.

Once we understand the distinction between constitutional law and the Constitution, once we see that constitutional decisions need not be seen as the last words in constitutional construction, once we comprehend that these decisions do not necessarily determine future public policy, once we see all of this, we can grasp a correlative point: constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government.

The Supreme Court, then, is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution-the executive and legislative no less than the judicial-has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect. [Emphasis added]

Some will say the principle of coordinate construction threatens the rule of law. They will argue that allowing the president to pick and chose the laws he enforces will result in chaos. But as Meese points out, failure to uphold the Constitution poses a much larger threat to the “rule of law.”

If law, as Thomas Paine once said, is to remain “King” in America we must insist that every department of our government, every official, and every citizen be bound by the Constitution. That’s what it means to be “a nation of laws, not of men.”

No. The president should not absolutely enforce every act passed by Congress. Constitutionally, he has a duty to refuse to enforce any act violating the highest law of the land. And from a practical standpoint, he simply can’t. Limited federal resources make enforcement of 150,000 pages of regulation an impossibility.

Republicans would be wise to consider the long-term ramification of their proposal.